This case is before us for the second time. Previously, we held
in part that the prosecutor’s appeal of the trial court order
granting defendant a new trial was not properly before us and
declined to address it. People v Torres, 209 Mich App
651, 658; 531 NW2d 822 (1995). The Supreme Court reversed this
holding and remanded the case to us so that we may address the
question whether the trial court erred in sua sponte setting aside
the jury verdict and granting defendant a new trial. People
v Torres, 452 Mich 43; 549 NW2d 540 (1996), cert den ___ US
___; 65 USLW 3569 (1997). We reverse and remand for reinstatement
of the jury verdict.

Defendant was charged with possession with intent to deliver
more than 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).
A jury convicted defendant of simple possession of more than
650 grams of cocaine, MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i).
In our previous opinion, we set forth the facts of this case:

At trial, the prosecution attempted to show that defendant had
acted in concert with several others in the delivery of cocaine
to undercover police officers. Anthony Valentine testified that
defendant participated in conversations about purchasing the cocaine.
Defendant accompanied Valentine, Rodney Edwards, Freddie Marshall,
and David Crowl as they went to get cocaine from Edwards’ source.
The source handed a box containing cocaine to defendant, who
kept it in front of him as the group traveled to the meeting place.
When the vehicle stopped several blocks from the site where the
transaction with the undercover officers was to occur, defendant
handed the box to Edwards, who in turn handed it to Valentine.
Marshall, Crowl, and Valentine then left to make the sale.

The jury was instructed with regard to both possession with intent
to deliver and simple possession of more than 650 grams of cocaine.
When instructing the jury, the trial court described simple possession
as a "less serious" offense. On September 27, 1990,
the jury convicted defendant of possession of more than 650 grams
of cocaine.

In an order dated October 22, 1990, the trial court, on its own
motion, set aside the jury verdict and granted defendant a new
trial. The court believed that it had erred in instructing the
jury that simple possession is a "less serious" offense
than possession with intent to deliver because both offenses carry
the same penalty.1 The court reasoned that if it had
not instructed the jury that simple possession was a "less
serious offense," the jury might well have acquitted defendant.

1At that time, the penalty for both possession with
intent to deliver more than 650 grams of cocaine and simple possession
of more than 650 grams of cocaine was a mandatory sentence of
life imprisonment without the possibility of parole. However,
the Supreme Court has since held that a mandatory life sentence
without parole for simple possession of more than 650 grams of
cocaine violates the constitutional prohibition of cruel or unusual
punishment. Simple possession of more than 650 grams of a controlled
substance is now a parolable offense. People v Bullock,
440 Mich 15, 37 & n 19; 485 NW2d 866 (1992). [Torres,
209 Mich App 653-654.]

I

The prosecutor argues that the trial court erred in sua sponte
granting defendant a new trial.[1] The grant of
a new trial is reviewed
for an abuse of discretion. People v Reed, 198 Mich App
639, 645; 499 NW2d 441 (1993), aff’d 449 Mich 375 (1995). The
standard for reviewing an abuse of discretion is narrow; the result
must have been so violative of fact and logic that it evidences
a perversity of will, a defiance of judgment, or an exercise of
passion or bias. People v Woods, 200 Mich App 283, 288;
504 NW2d 24 (1993).

Under MCR 6.431(B), on the defendant’s motion, the court may
order a new trial on any ground that would support appellate reversal
of the conviction or because it believes that the verdict has
resulted in a miscarriage of justice. This Court has held that
MCR 6.431(B) allows the trial court to order a new trial in a
criminal case only when a motion has been brought by the defendant.[2]
See People v McEwan, 214 Mich App 690, 694; 543 NW2d 367
(1995). Accordingly, the trial court erred in granting defendant
a new trial on its own motion.

Moreover, we conclude that even if defendant had moved for a
new trial, the trial court would not have been justified in granting
the motion. The trial court based the grant of a new trial on
its belief it had erred in instructing the jury on the offense
of simple possession of more than 650 grams of cocaine. The court
believed that, under the circumstances of this case, that possession
could not be considered a lesser included offense of possession
with intent to deliver because the offenses carried the same penalty.

In general, the duty of the trial court to instruct on lesser
included offenses is determined by the evidence. People v
Hendricks, 446 Mich 435, 442; 521 NW2d 546 (1994). When an
offense is necessarily included, the evidence will always support
the lesser offense if it supports the greater. People v Veling,
443 Mich 23, 36; 504 NW2d 456 (1993). If evidence has been presented
that would support a conviction of a lesser included offense,
refusal to give a requested instruction is error requiring reversal.Hendricks, supra. The prosecutor, as well as the
defendant, may request an instruction on a lesser included offense.[3]People v King, 98 Mich App 146, 153; 296 NW2d 211 (1980).

Possession of more than 650 grams of cocaine has been considered
to be a necessarily included lesser offense of possession with
intent to deliver that amount of cocaine, as the only distinguishing
characteristic is the additional element of the intent to deliver.People v Gridiron (On Rehearing), 190 Mich App 366, 369;
475 NW2d 879, modified with regard to remedy 439 Mich 880 (1991).
However, the question remains whether simple possession could
have been considered a lesser included offense of possession with
intent to deliver at the time of defendant’s trial, as the offenses
then carried the same penalty.

Whether one offense can be a lesser included offense of another
if both carry the same penalty is an issue of first impression
in Michigan. Other states have addressed this issue, reaching
conflicting results. Some states have held that one offense cannot
be a lesser included offense of another if both carry the same
penalty. See, e.g., Nurse v State, 658 So 2d 1074 (Fla
Ct App, 1995); State v Anthony, 242 Kan 493, 497; 749 P2d
37 (1988); Sanders v State, 479 So 2d 1097, 1108 (Miss,
1985). However, other states have found that penalty is irrelevant
in determining whether one offense is a lesser included offense
of another. See, e.g., State v Young, 305 NC 391, 393;
289 SE2d 374 (1982); Stockton v State, 756 SW2d 873, 876
(Tex Ct App, 1988).

In Nurse, supra, the court addressed the issue and
concluded that the underlying reasons for allowing a jury to convict
on a lesser included offense imply that the lesser offense carries
a lighter penalty than the charged offense. The Nurse
court noted that one policy reason for allowing a jury to convict
on a lesser included offense is that it allows a jury to exercise
its power of leniency, or pardon power, by acquitting the defendant
of the charged offense and convicting the defendant of a lesser
offense. A related policy reason is that it allows a jury which
cannot agree on a verdict on the charged offense to compromise
by finding the defendant guilty of a lesser offense. The court
concluded that both policy rationales presuppose that the lesser
offense carries a lesser penalty than the charged offense. Seeid. at 1078-1079.

In contrast, in Texas the determination whether an offense is
a lesser included offense of the charged offense is made without
regard to punishment. One court explained, "The word "lesser"
does not refer to the punishment range, but to the factor that
distinguishes the included offense from the offense charged, i.e.,
less than all facts, less serious injury or risk of harm, less
culpable mental state, or an attempt." Johnson v State,
828 SW2d 511, 515-516 (Tex App, 1992).

A factor cited by some courts in holding that one offense cannot
be a lesser included offense of another if both carry the same
penalty has been the fact that the offenses at issue were defined
in a single statute. See Anthony, supra; Sanders,supra. However, that factor is irrelevant in the present
case because the offenses of possession of more than 650 grams
of cocaine and possession with intent to deliver more than 650
grams of cocaine are set out in two separate statutes. See MCL
333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), MCL 333.7403(2)(a)(i);
MSA 14.15(7403)(2)(a)(i).

In Michigan, statutory authorization for allowing a trier of
fact to convict a defendant of lesser degrees of an offense charged,
except where the defendant is charged with certain drug offenses,
is provided by MCL 768.32(1); MSA 28.1055(1). The statute states:

Except as provided in subsection (2), upon an indictment for an
offense, consisting of different degrees, as prescribed in this
chapter, the jury, or the judge in a trial without a jury, may
find the accused not guilty of the offense in the degree charged
in the indictment and may find the accused person guilty of a
degree of that offense inferior to that charged in the indictment,
or of an attempt to commit that offense. [MCL 768.32(1); MSA
28.1055(1).]

Over a century ago, our Supreme Court noted that the statute
was intended to remove the common-law restriction that, upon an
indictment for a felony, the defendant could not be convicted
of a misdemeanor. See Hanna v People, 19 Mich 315, 322
(1869).[4] More recently, this Court stated
that the statute "is
merely declaratory of the longstanding rule that due process notice
requirements are not violated by convicting an accused of a lesser
included offense since lesser included offenses can have no elements
different from those in the principal charge." People
v Membres, 34 Mich App 224, 231; 191 NW2d 66 (1971).

Defendant argues that in order for an offense to be "inferior"
within the meaning of MCL 768.32(1); MSA 28.1055(1), the penalty
must be less than that of the charged offense. However, after
carefully considering the issue, we conclude that under MCL 768.32(1);
MSA 28.1055(1), an offense may be inferior to another even if
the penalties for both offenses are identical. We believe that
the word "inferior" in the statute does not refer to
inferiority in the penalty associated with the offense, but rather
to the absence of an element which distinguishes the charged offense
from the lesser offense. The controlling factor is whether the
lesser offense can be proved by the same facts which are used
to establish the charged offense. As the Membres court
noted, the defendant’s due process notice rights are not violated
because all the elements of the lesser offense have already been
alleged by charging the defendant with the greater offense.

Moreover, under the constitution of this state, the people have
vested in the Legislature the exclusive authority to determine
the terms of punishment imposed for violations of the criminal
law. Const 1963, art 4, § 45; People v Schultz,
435 Mich 517, 525; 460 NW2d 505 (1990). There is nothing in the
constitution which prohibits the Legislature from selecting the
same penalty for a crime and a lesser included offense of that
crime. The right to due process of law merely requires that a
defendant cannot be convicted of an offense unless each element
of the offense has been proved beyond a reasonable doubt. In
re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368
(1970).

We are not persuaded by the Nurse court’s policy arguments
for concluding that an offense cannot be a lesser included offense
of another if both carry the same penalty. Michigan courts have
recognized that a jury possesses the power of leniency. See People
v Lewis, 415 Mich 443, 450-453; 330 NW2d 16 (1982); People
v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980). However,
this is a de facto power on which the jury is not instructed.
Furthermore, as the dissenting judge in Nurse noted, the
existence of a jury power of leniency does not entitle the defendant
to a jury charge on any and every offense, without regard to the
evidence presented at trial. See Nurse, supra at
1087 (Cope, J., dissenting).

Moreover, while compromise verdicts undoubtedly occur, we do
not believe that their existence compels the conclusion that a
lesser included offense must have a less severe sanction than
the greater offense. It seems likely that at least some compromise
verdicts are based upon disagreements among the jurors over which
elements the prosecution has proved beyond a reasonable doubt,
without regard to penalty. Moreover, as stated above, the right
to due process of law merely requires that a defendant cannot
be convicted of an offense unless each element of the offense
has been proved beyond a reasonable doubt. Winship, supra.

Thus, we hold that the trial court did not err in instructing
the jury on the lesser included offense of possession of more
than 650 grams of cocaine despite the fact that, at that time,
the penalty for simple possession of more than 650 grams of cocaine
was identical to that for possession with intent to deliver more
than 650 grams of cocaine. The trial court would in fact have
erred had it not acceded to the prosecutor’s request for the instruction.
See Hendricks, supra; King, supra.
The fact that, at the time, the penalties for simple possession
of more than 650 grams of cocaine and possession with intent to
deliver more than 650 grams of cocaine were identical is irrelevant
to the determination whether the former offense is a necessarily
included offense of the latter. Accordingly, we conclude that
the trial court abused its discretion in setting aside the jury
verdict and granting defendant a new trial.

II

Defendant also contends that even if a lesser included offense
may carry the same penalty as the charged offense, the trial court
erred in telling the jury that simple possession was a "less
serious" crime than possession with intent to deliver. Defendant
compares this situation to that addressed by the Supreme Court
in People v Vail, 393 Mich 460; 227 NW2d 535 (1975). InVail, the Court held that where the jury is permitted to
consider a charge unwarranted by the proofs, prejudice is presumed
because the defendant’s chances of acquittal on any valid charge
are substantially decreased by the possibility of a compromise
verdict. Id. at 464. However, we find defendant’s analogy
to Vail to be inapposite because defendant does not argue
that the proofs did not support a conviction of possession with
intent to deliver more than 650 grams of cocaine. In fact, the
opposite is true; defendant vociferously contends that the conviction
of simple possession of 650 grams of cocaine was flawed because
"no rational view of the evidence would have supported a
claim that he possessed the drugs without the intent to deliver
them." Because defendant concedes that the evidence supported
the instruction on possession with intent to deliver more than
650 grams of cocaine, he was not prejudiced by a compromise verdict
convicting him of a lesser included offense.

In deciding to grant defendant a new trial, the trial court reasoned
that if it had not instructed the jury that simple possession
was a "less serious" offense than possession with intent
to deliver, the jury might have acquitted defendant. However,
we find this to be mere speculation on the part of the trial court.
The rule in Michigan is that neither the court nor counsel should
address themselves to the question of the disposition of a defendant
after the verdict. Furthermore, it is proper for the court to
instruct the jury that it is not to speculate on this issue, and
that it should confine its deliberations to the issue of guilt
or innocence. People v Goad, 421 Mich 20, 25-26; 364 NW2d
584 (1984); see CJI2d 3.13. The trial court in fact instructed
the jury that it should not allow possible penalty to influence
its decision. As a general rule, juries are presumed to follow
their instructions. People v Banks, 438 Mich 408, 418;
475 NW2d 769 (1991), cert den 502 US 1065 (1992).

Defendant did not object to the jury instructions at trial; in
fact, he indicated that he was satisfied with them. Therefore,
our review is limited to the issue whether relief is necessary
to avoid manifest injustice. People v Haywood, 209 Mich
App 217, 230; 530 NW2d 497 (1995). Manifest injustice occurs
where the erroneous or omitted instruction pertains to a basic
and controlling issue in the case. People v Johnson, 187
Mich App 621, 628; 468 NW2d 307 (1991). We find that the trial
court’s statement that simple possession was a "less serious"
crime than possession with intent to deliver did not lead to manifest
injustice, and therefore defendant is not entitled to relief.

III

Next, defendant maintains that the failure of his trial counsel
to object to the instruction on simple possession constitutes
ineffective assistance of counsel. A defendant that claims that
he has been denied the effective assistance of counsel must establish
that (1) the performance of his counsel was below an objective
standard of reasonableness under prevailing professional norms,
and (2) a reasonable probability exists that, in the absence of
counsel’s unprofessional errors, the outcome of the proceedings
would have been different. People v Pickens, 446 Mich
298, 302-303; 521 NW2d 797 (1994). A defendant must overcome
a strong presumption that the assistance of his counsel was sound
trial strategy, and he must show that but for counsel’s error,
there is a reasonable probability that the outcome of the trial
would have been different. People v Stanaway, 446 Mich
643, 687; 521 NW2d 557 (1994), cert den sub nom Michigan v
Caruso, 513 US ___; 115 S Ct 923; 140 L Ed 2d 802 (1995).

Defendant relies on People v Gridiron (On Rehearing),
190 Mich App 366; 475 NW2d 879 (1991), modified as to remedy 439
Mich 876 (1992). In Gridiron, the defendant was charged
with possession with intent to deliver over 225 but less than
650 grams of cocaine, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii),
and his defense counsel requested an instruction on simple possession
of over 225 but less than 650 grams of cocaine, MCL 333.7403(2)(a)(ii);
MSA 14.15(7403)(2)(a)(ii). The defendant was then convicted of
simple possession. This Court held that defense counsel, in requesting
an instruction regarding simple possession, rendered ineffective
assistance of counsel because there was no logical reason why
a defendant charged under § 7401(2)(a)(ii) would want
a simple possession instruction under § 7403(2)(a)(ii),
as the penalty for the two offenses was the same, but a conviction
pursuant to § 7403(2)(a)(ii) requires proof of fewer
elements than a conviction under § 7401(2)(a)(ii).Id. at 402-403.

We find that the instant case is distinguishable from Gridiron.
In contrast to Gridiron, where the defense counsel requested
and received the instruction, the defendant’s trial counsel merely
failed to object to the prosecutor’s request for an instruction
on simple possession. As discussed above, the trial court must
instruct the jury on a necessarily included lesser offense if
the prosecutor requests it. Hendricks, supra; King,supra. Thus, the instruction was proper, and defendant
was not prejudiced by his counsel’s failure to object. As the
Supreme Court has noted:

Defense counsel’s objection to the giving of the instruction on
included offense is not controlling. It is the duty of the trial
court to instruct the jury as to the law applicable to the case.
MCLA 768.29; MSA 28.1052. Neither the defense nor the prosecution
has the option of precluding the court from carrying out this
duty in hopes of forcing an "all or nothing" verdict.
[People v Chamblis, 395 Mich 408, 415; 236 NW2d 473 (1975),
overruled in part on other grounds 416 Mich 252; 330 NW2d 675
(1982).]

Thus, defense counsel’s failure to object to a proper jury instruction
on a lesser included offense does not constitute ineffective assistance
of counsel. Defense counsel was not required to raise a meritless
objection. See People v Gist, 188 Mich App 610, 613; 470
NW2d 475 (1991).

Reversed and remanded for reinstatement of the jury verdict.
We do not retain jurisdiction.